*Writer: João Marcos de Carvalho Pedra

The actions of the Judiciary, especially its Superior Courts, have been receiving media attention and public scrutiny, even from laypeople, on a virtually daily basis. 

This is due to the issues that the Courts have faced in recent decades, which have practical effects on the entire population, given the erga omnes nature of decisions in abstract constitutional review, or in concrete review supported by general repercussion.

In recent years, constitutional courts around the world have adopted a stance considered activist in several respects. This activist approach occurs when courts make decisions that often fill legislative gaps or even address complex and sensitive issues that could fall under the responsibility of the Legislative or Executive branches.

This phenomenon also occurs because the judges of these courts do not have to be tested at the polls periodically, as is the case with members of the Executive and Legislative branches.

This stance largely reflects social and political transformations and the need to guarantee rights in a context where other branches of government are not always able or willing to act quickly.

The concept of judicial activism is generally associated with decisions in which judges interpret the Constitution or other laws in an innovative way, often shaping or altering public policies that would motivate effective action by members of other branches of government.

Origin of the Term

The concept of judicial activism emerged during the 20th century in the United States. For several years, the American judiciary, instead of simply applying the law neutrally, made decisions that directly affected the country's public policies, assuming a more active role in government.

This phenomenon became even more evident during the Warren Court, a period in which Justice Earl Warren served as Chief Justice of the United States Supreme Court, between 1953 and 1969.

This phase of the United States Supreme Court (SCOTUS) is marked by a series of landmark decisions that expanded civil rights and individual liberties, promoting a progressive vision of the U.S. Constitution.

Under Warren's leadership, the Court adopted a stance considered activist, ruling broadly on sensitive issues in American society, such as racial segregation, freedom of speech, and the rights of the accused.

It was during the Warren Courts that Brown v. Board of Education (1954) was decided. This is perhaps the Warren Court's most emblematic decision. The SCOTUS declared racial segregation in public schools unconstitutional, reversing the "separate but equal" principle established in Plessy v. Ferguson (1896).

The decision was a landmark in the civil rights movement and a crucial step toward initiating an even more active movement against racial segregation in the United States.

Among other cases decided by the United States Supreme Court during this period, the following stand out: Mapp v. Ohio (1961), Gideon v. Wainwright (1963), Miranda v. Arizona (1966), Engel v. Vitale (1962), and Loving v. Virginia (1967).

All of the cases mentioned above share a series of characteristic traits of an active role for the Supreme Court. Given the context and the procedural tools of judgment, what we now call judicial activism was shaped.

To better understand them, a thorough analysis of the decision issued by SCOTUS is suggested, as well as the votes cast in each case, through the website https://supreme.justia.com/.

Features

To better establish the foundations that characterize this activist phenomenon, it is important to observe the occurrence of 4 (four) main characteristics of judicial action: 

(i) Judges adopting broader or more creative interpretations of the constitutional text or current legislation; 

(ii) There is an explicit defense of rights that, in some cases, are not explicitly provided for by law, but which are interpreted as necessary to guarantee justice or equity;

(iii) The courts begin to invalidate laws or acts of other powers based on their interpretation of what would violate constitutional principles.

(iv) The Judiciary making use of prerogatives and functions that are essentially those of the Legislative and/or Executive branches.

Activism in Brazil

To better understand the phenomenon of judicial activism in Brazil, it is of utmost importance to examine some cases that clearly illustrate judicial activism in our country. 

A notable example is the Supreme Federal Court's decision in 2011 to recognize civil unions for same-sex couples. In the absence of specific legislation addressing the issue, the Court interpreted the Constitution to guarantee fundamental rights of equality and dignity, a decision considered activist. 

At the same time, in defense of the rights of the LGBTQIA+ group, the Supreme Court recognized that homophobia and transphobia are equivalent to the crime of racism, even though no law explicitly contains this provision. 

Another significant case was the recognition of the right to health in the provision of high-cost medications and treatments by the Unified Health System (SUS), in which the Supreme Federal Court (STF) determined the State's duty to provide these medications, even without explicit legislative provision.

During the Covid-19 pandemic, the Brazilian Supreme Court (STF) also made an important decision by allowing states and municipalities the autonomy to adopt restrictive measures on the movement and operation of activities, independently of the Federal Government's policy. 

This decision was seen as a way to guarantee the protection of public health in the face of the Executive's failure to establish stricter guidelines to combat the pandemic.

In other areas, such as environmental protection and the rights of indigenous peoples, the Supreme Federal Court (STF) has reinforced the role of the Judiciary in guaranteeing diffuse and collective rights, demanding more effective and rigorous actions from the Executive Branch against deforestation that have practical effects on the protection of indigenous territories. 

These decisions reflect the idea that the Judiciary has the responsibility to act as guardian of the Constitution and fundamental rights, as stipulated in Article 102 of the Federal Constitution, and therefore intervenes when the other branches of government fail to guarantee constitutionally guaranteed rights.

Judicial activism in Brazil, however, is the target of both criticism and praise. Proponents argue that the judiciary is necessary to guarantee rights and correct injustices, especially on sensitive issues where the legislature is silent. 

Critics, however, point out that judicial activism can weaken the separation of powers, since decisions important to society are made by judges and not by elected representatives. 

This debate about the limits of judicial action and the role of the Supreme Federal Court (STF) in Brazilian politics and society continues to evolve, reflecting the challenges of a country that demands the protection of rights in complex and dynamic contexts.

Continue studying this topic with our article "Judicial Activism in Brazil".

BIBLIOGRAPHIC REFERENCES

CAMPOS, Carlos Alexandre de Azevedo. Dimensions of judicial activism in the Supreme Federal Court. 2012. 378 p. Dissertation (Master's in Constitutional Civil Law; City Law; International Law and Economic Integration; Law) – State University of Rio de Janeiro, Rio de Janeiro, 2012.

EARL Warren, 1953-1969. SUPREME COURT HISTORICAL SOCIETY. Available at https://supremecourthistory.org/chief-justices/earl-warren-1953-1969/. Accessed on: October 25, 2024.

Supreme Court of the United States. Brown v. Board of Education (1954). Available at https://www.archives.gov/milestone-documents/brown-v-board-of-education. Accessed October 25, 2024.